Dorothy M. Evans, Plaintiff-appellant, v. Independent Order of Foresters, Defendant-appellee, 141 F.3d 931 (9th Cir. 1998)

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US Court of Appeals for the Ninth Circuit - 141 F.3d 931 (9th Cir. 1998) Argued and Submitted March 10, 1998
Decided April 6, 1998

Peter L. Flangas, Las Vegas, Nevada, for plaintiff-appellant.

Mark J. Ricciardi, Ricciardi & Associates, Las Vegas, Nevada, for defendant-appellee.

Appeal from the United States District Court for the District of Nevada; Phillip M. Pro, District Judge, Presiding. D.C. No. CV-00710-PMP(LRL).

Before: CHOY and REINHARDT, Circuit Judges, and RESTANI, United States Court of International Trade Judge.* 


Plaintiff appeals the denial of a motion to set aside judgment pursuant to Fed. R. Civ. P. 60(b). The district court granted the defendant's motion for summary judgment and entered judgment for the defendant solely pursuant to a local rule that provided that failure to respond to a motion constitutes consent. Granting the motion without determining whether the defendant's moving papers, including "the papers and pleadings on file herein," showed that no genuine issues of material fact exist was error under Henry v. Gill Indus., Inc., 983 F.2d 943 (9th Cir. 1993). See Marshall v. Gates, 44 F.3d 722 (9th Cir. 1995) (following Henry) ; Cristobal v. Siegel, 26 F.3d 1488 (9th Cir. 1994) (same). The district court's subsequent denial of the Rule 60(b) motion was an abuse of discretion because the underlying decision was based on an error of law. See Yniques v. Cabral, 985 F.2d 1031, 1034 (9th Cir. 1993) (holding that underlying judgment based on error of law is "mistake" under Fed. R. Civ. P. 60(b) that requires reversal). We therefore reverse the district's denial of the motion to set aside the judgment and remand to the district court to determine the merits of the summary judgment motion.


Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by designation